The National Electoral Commission deprived of its powers in Poland

Law and Justice party has just excluded a key institution from the process of preparing the elections: the National Electoral Commission. Former Chairperson of the Commission Judge Hermeliński: such a change in the electoral laws and procedures is in breach of Article 2 of the Constitution.

by Mariusz Jałoszewski and Agata Szcześniak

The Minister of Health Łukasz Szumowski recommends: “either voting by post or personally in two years” in presidential elections in Poland.

Only that both are currently impossible. The governing Law and Justice party (Prawo i Sprawiedliwość, PiS) has deprived the National Electoral Commission (Państwowa Komisja Wyborcza, PKW) of its powers.

Former Chairperson of the PKW and retired judge of the Constitutional Tribunal Wojciech Hermeliński is clear: “Such a change in the electoral laws and procedures is in breach of Article 2 of the Constitution of the Republic of Poland.”

Presidential elections and public health emergency

“The only safe way of holding the presidential elections is voting by post,” said Minister of Health Łukasz Szumowski on the 17th of April at a long-awaited press conference on his electoral recommendations. According to the minister, another option is personal elections but in two years, when a coronavirus vaccine is available.

The Health Minister’s recommendations mean that PiS will hold elections by post in May 2020.

But PiS has just excluded a key institution from the process of preparing the elections: the National Electoral Commission (PKW), which can no longer print the voting cards. On the 17th of April president Andrzej Duda signed a bill depriving the PKW of the powers to organise elections. “It is difficult to predict how it will all look,” Tomasz Grzelewski, the press officer of the PKW comments.

Who will print the cards? An institution nominated by the Minister of State Assets, Jacek Sasin, a close collaborator and friend of PiS Chairman Jarosław Kaczyński. But there is currently a legal gap: the PKW no longer has the right to print voting cards, whereas the Minister does not have such a right yet. It is also unknown who is supposed to issue certificates to citizens giving them the right to vote away from their place of residence. The municipalities had been doing this until now; PiS has deprived them of this right.

Electoral sprint

PiS passed an Act on voting by post on the 6th of April.

The Senate, where the opposition controls a fragile majority, will deal with it on the last possible date: the 6th of May. The Sejm will then almost certainly pass the bill and the president Duda will sign it immediately.

Which would mean that there would be … a whole three days to issue regulations and conduct the whole of the electoral process. Unless PiS postpones the elections from the 10th of May until the 17th of May (Sunday) or the 23th of May (Saturday, the last possible constitutional date).

PiS has accustomed us to the fact that parliament works like a conveyor belt without any downtime. But this time, it will not only stretch the law, but will also involve numerous institutions in its practices. It will also exclude others from this process – including the PKW, which has handled elections until now. The PKW was brought down to the role of an institution that is supposed to count the votes and rubber stamp the results.

The PKW deprived of its powers by an ‘insert’ to coronavirus economic package

PiS formally excluded the National Electoral Commission from organising the presidential elections by means of an ‘insert’ (Article 100) into the so-called ‘second crisis shield’, the revised coronavirus economic package, adopted by Sejm on Thursday, the 16th of April.

The provision states that several provisions of the Electoral Code are not applied during a period of a state of epidemic threat or state of epidemic, when holding presidential elections.

This applies to the suspension of the provisions on:

mayors providing information in the form of an announcement about the numbers and boundaries of constituencies, headquarters of electoral commissions, polling stations adapted to the disabled and the ability to vote by post and by proxy;

issuing certificates confirming the right to vote;

the electoral commissioner giving information to voters by about the timing of the elections and the voting times, as well as on how to vote for the vote to be valid;

voting by post for the disabled, people in quarantine and people aged over 60;

voting by proxy;

the definition by the PKW of the template of the voting card and ordering its printing.

This provision also deprives the local authorities of some of their powers, because, according to the electoral code, it is the municipal halls that issue certificates confirming the right to vote (Article 32, para. 1 and 2).

PiS claims that it introduced these provisions into the ‘second crisis shield’ so as not to duplicate the Minister of State Asset’s work, as he is supposed to organise voting by post with the Polish Post Office.

PKW: “It’s difficult to predict how it will end up”

The PKW press officer, Tomasz Grzelewski, explains how the preparations for the elections are currently looking. “This provision is not yet applicable. We are operating on the basis of the applicable electoral code. We still have to print the voting cards. This will only change after this bill is published. It is difficult to predict how it will all look”.

The electoral commissioners have to specify the membership of the electoral commissions by Monday 20 April. There are over 27,000 of them throughout the country. 246,000 members should work in them, but 112,000 people, namely 45.5%, have volunteered to work in the commissions so far.

The current head of the PKW, Sylwester Marciniak (judge of the Supreme Administrative Court), has already issued two announcements from which it arises that the presidential elections should not take place in May because this will endanger the health of the voters and will not reflect the will of the Poles.

The former Chairperson of the PKW and former judge of the Constitutional Tribunal, Wojciech Hermeliński comments: “After the president signs the Act, the elections cannot be held by post in May, as previously assumed. The printing of the voting cards by the PKW and informing citizens about the elections will be suspended. The citizen will not know how the elections should look until the next Act [the one giving the Minister of State Assets special rights, which is now in the Senate – ed.] enters into force. Laws cannot be created in this way; this will backfire”.

Hermeliński emphasises that the suspension of provisions of the Electoral Code through Article 100 brings the PKW’s role down to being a square peg in a round hole. “Its powers are frozen and a gap has arisen. But if the elections fail, it will be possible to blame it for that.”

Hermeliński reiterates that, according to the case law of the Constitutional Tribunal, electoral rules cannot be significantly changed half a year before the elections. And in the case of these elections, we shall find out about the rules for holding them several to a dozen or so days before the elections.

Not only is the method of voting changing, but so is the method of preparing and organising the elections. A professional PKW, headed by a judge, is being replaced by an active politician from the ruling party, Jacek Sasin. It is still unknown who will do this instead of the electoral commissions supporting the entire voting process, and how.

“This is not how it is done. Such a change in the electoral rules and procedures is in breach of Article 2 of the Constitution, which states that ‘the Republic of Poland is a democratic state ruled by law, implementing the principles of social justice’. Such creation of the electoral law as is currently taking place violates civic trust in the State,” emphasises Hermeliński.

The Post Office will distribute the cards, but who will print them?

Despite the lack of provisions giving grounds for Minister Sasin to prepare the elections, the government is already commissioning tasks to the Polish Post Office.

According to radio RMF, the prime minister has instructed the management board of the Polish Post Office to perform activities involving the preparation for ‘conducting the presidential elections by post’. Minister Sasin has made the assurance in interviews that the Polish Post Office will manage to fulfil the task.

According to PiS’ ideas, the post office is supposed to deliver correspondence packages to voters, while Poles are to place them into the ballot boxes set up, for instance, in front of the closed headquarters of the electoral commissions. It is not yet known who will watch the ballot boxes: the police, the army, or maybe the soldiers of the territorial defence forces?

Meanwhile, the cards are supposed to be printed by the Polish Security Printing Works (PWPW). ‘Newsweek’ writes that PWPW already knows it will not manage to do this. “Nobody has thought that around 100 tonnes of paper is needed for two rounds of elections. It takes three weeks to produce this amount of ‘secure’ paper,” PWPW employees tell ‘Newsweek’.

Therefore, ideas are appearing that the State Treasury companies should help prepare the printing of the voting cards and envelopes for the voting cards.

There are also supposed to be fewer electoral commissions. PiS believes one is enough per large city and, for example, two in Warsaw. PiS’ special Act on elections, which is with the Senate, envisages such a possibility. There would also be a need for fewer people to work in the commissions. However, the counting of the votes in such large commissions could last as long as several days.

All these activities are being conducted for PiS to be able to hold the elections in May and win them at all costs.